The Wire did a piece on who owns Ellen’s Oscar Selfie because it was Bradley Cooper, rather than Ellen, who took the picture. Philip Bump did a great job explaining the copyright issues with legal assists from some hot-shot Hollywood entertainment lawyers. But the question is really just for entertainment. It doesn’t matter who owns the Oscar Selfie. But do you know how to use other people’s online content without copyright infringement?
In this case, it has been copied, reproduced, and distributed so widely that if you haven’t seen it yet, you might check to see if you are breathing. So even if you owned it, who would buy it? Everyone already has it in one sense or another.
Second, it was taken to share on Twitter, and was immediately uploaded to the site. Twitter is public. When you post there, you give permission to everyone to retweet, i.e. copy your post. Here’s the specific language from the Twitter Terms of Service
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
While you have some control over who can retweet your posts and what posts can be retweeted, you cannot turn off all retweets on Twitter. So by posting and through your privacy settings (or lack of them), you consent to people copying your tweets.
The only time ownership of social media content really matters is when someone else is making money off your content without your permission. Even then, you usually have to show how it damaged you, not just that someone else used it and made money.
With the Oscar Selfie, everyone involved with it benefitted. Samsung, who made the phone that took the picture, was so delighted it is donating $3M to St. Jude’s Children’s Research Hospital and the Human Society ($1.5M each). And the phone wasn’t even in the picture (but the video of the picture being taken also went viral). So lots of kids and animals who had nothing at all to do with the Oscars will benefit. How cool is that?
While lawyers love to argue about who owns what and what rights may or may not be violated, the Oscar Selfie is a great example of when ownership doesn’t matter.
There are lots of things we technically own that don’t matter because nobody wants it, like your stinky socks, or because nobody cares, like the grass in your front yard.
Ownership is not always important, or even interesting.
That said, people do own their content online and just because it’s there, that doesn’t mean you can take it or use it for anything you want. Here is more on that in Social Media, Blogging, and Copyright
And here are my suggestions on how to properly use other people’s online content.
- Excerpting a short quote with a mention of the author and a link to her or her original post is the proper way to use another blogger’s material. If you have copied more than about 15%, you’re pushing it. Copying the whole thing is illegal and a clear copyright violation.
- Always link back to the original post. It is the proper way to give attribution of the author, and is important for blog traffic, which is what sponsors and advertisers look at in deciding whether to advertise. So if you don’t link back, you are also stealing traffic and advertising dollars.
- If you want to use the whole thing, you need to get permission. It never hurts to ask, especially if you can bring an author a new audience or want to say really great things about him.
- If you are using someone else’s photograph or image, it’s really hard to excerpt. So you should get permission if it is copyrighted or some copyrights are reserved. This includes Pinterest. The exception is images from catalogs or advertisements where you are essentially offering more exposure and advertisement for a company selling something. It’s still a copyright violation, but you’re actually doing them a favor, so no one is going to complain.
So when you use someone’s work on the internet, always give credit, don’t copy the whole thing, and always link to the original post. If you’re not sure, ask for permission.
This work was originally posted on HRExaminer & appears with express written permission of the author.
About the Author: Heather Bussing is an employment attorney and the Editorial Advisory Board editor at HR Examiner. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. She regularly advises companies on personnel policies and how to navigate employment discipline and termination issues.
Heather also practices in the areas of real estate, torts, construction and business law including business entity formation and corporate governance. Lately, she has been working on projects involving social media law and why companies should treat their employees differently. She also teaches legal research and writing, is an accomplished photographer and walks on the beach whenever she can.